Danish outerwear brand Rains wins court battle against Zara

In Insights

28 May, 2020

This case concerns whether three raincoats produced and marketed by Zara infringed on two raincoats from Rains, the Long Jacket and Parka Coat, under the Danish Copyright Act and the Danish Marketing Act.

The Danish Maritime and Commercial Court handed down its judgement on May 15, 2020 between Rains Aps and Zara Denmark A/S and Zara’s parent company Fashion Retail, S.A.

The Court found that the coats did not meet the minimum requirements to enjoy copyright protection. A recent decision, C-683/17 COFEMEL held that for clothing to be protected by copyright, it must be considered a work. Specifically, it should be an original product which reflects the personality of its author, as an expression of their free and creative choices.

While the Court held that the founder of Rains developed the Long Jacket and Parka Coat, it did not find that these coats met the requirements for protection under the Danish Copyright Act.

However, the Court did find that the coats possessed the necessary degree of distinctiveness to enjoy protection under the Danish Marketing Act. This was based on the quality as well as independent and minimalistic impression the coats possessed.

The fact that Zara instructed their Chinese manufacturer to produce exact copies may also have been a deciding factor. Ultimately, the Court ordered Zara to immediately cease selling and manufacturing the two coats.

The case does not consider design as a possible protection as the coats were introduced to the market in 2012. Any applicable protection as an Unregistered Community Design would have expired in 2015.

Typically, the three-year protection offered to unregistered designs is sufficient for clothing, considering the speed at which fashion moves. However, for brands producing long-lasting and timeless products, design registration with protection for up to 25 years, can be worth pursuing.

Design registration may have prevented litigation in this case as Rains would possess a registration certificate. The mere existence of a design registration and the accompanying certificate might also have prevented Zara from manufacturing exact copies in the first place.

The case is an important reminder for brands that want to protect products from copycats. Consider applying for a design registration, which not only protects, but also acts as a deterrent.

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